What impact will obesity as a disability have?

In the light of recent judgments, what rights do obese employees have in the UK and what impact will this have on employers?

The question of obesity as a disability was first considered by the Employment Appeal Tribunal in 2013 in the case of Walker –v- Sita Information Networking Computing Ltd UKEAT/0097/12.

Earlier this year the National Obesity Forum published its report the State of the nation’s waistline setting out the scale of obesity in the United Kingdom which now effects one in four of the adult population. One of the issues highlighted in the report was the scale at which obesity had arisen over the last 20 years costing the UK economy £47 billion a year in healthcare and social costs – a loss equivalent to 3 per cent of GDP. If the current rate of obesity continues the cost to the NHS in dealing with obesity could double by 2030.

It is inevitable that this rising cost and trend will impact in the workplace raising the question as to what are the rights of obese employees. In particular, is obesity deemed to be a disability under the Equality Act 2010 ? This is an important question as if obesity is deemed to be a disability then an employer is under a positive obligation to make reasonable adjustments in order to accommodate its disabled employees and job applicants. A failure to do so would potentially give rise to a claim for disability discrimination. A successful claim could expose an employer to unlimited damages as well as an award for injury to feelings as a result of any upset or hurt caused by an employer’s failure to make adjustment or other discriminatory treatment. No qualifying period of service is required in order to bring such a claim unlike in the case of unfair dismissal. As such could a job applicant make a successful claim for disability discrimination if they are turned down for employment as a result of being obese ?

The origins

The question of obesity as a disability was first considered by the Employment Appeal Tribunal in 2013 in the case of Walker –v- Sita Information Networking Computing Ltd UKEAT/0097/12. Mr Walker suffered from functional overlay which was compounded by his obesity (he weighted 21.5 stones). He suffered from a number of conditions – asthma, knee problems, bowel problems, anxiety and depression – which caused significant problems for him in his every day life.

The employment judge held that Mr Walker was not “disabled” for the purposes of discrimination legislation, the employment judge not finding any “physical or organic cause” for his conditions other than obesity. However, this decision was overturned on appeal by the President of the Employment Appeal Tribunal (EAT) who indicated that the employment judge was wrong to focus on the fact the medical evidence could not find a mental or physical cause for Mr Walker’s condition. Instead the employment tribunal should have focused on whether or not Mr Walkers suffered from a mental or physical impairment which he clearly did. The EAT noted that obesity itself did not amount to a disability.

However, if a claimant is obese then an Employment Tribunal may be more willing to conclude that the claimant does suffer from an qualifying impairment under the Equality Act 2010 (“Equality Act”) even if the cause of the impairment may itself be a condition which is excluded from the protection offered under the Equality Act for example, liver disease caused by alcoholism – alcoholism being excluded as a disability under the Equality Act.

The question of whether obesity is a disability was also considered by the European Court of Justice (CJEU) last year in the case of FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund, CJEU, 18 December 2014. Mr Kaltoft worked in the Municipality of Billund as a child minder for some 15 years when he was dismissed on the grounds of redundancy as a result of a downturn in work. Mr Kaltoft had been obese through out the whole of his employment and his obesity was mentioned during the dismissal process. His dismissal letter did not mention the reasons why he had been selected for redundancy nor did it mention his obesity. Following his dismissal Mr Kaltoft commenced proceedings against the Municipality arguing that he has been discriminated against on the grounds of his obesity. The question of whether or not EU law must be interpreted as laying down a general principle of non discrimination on the grounds of obesity was referred to the CJEU.

The CJEU ruled that, although there is no general principle of EU law prohibiting, in itself, discrimination on grounds of obesity, that condition may fall within the concept of ‘disability’ and thereby attract protection against discrimination under the Equal Treatment Framework Directive. It will only do so, however, where the usual criteria for establishing a disability are satisfied, including being such that the obesity hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.

The decision of the CJEU has now been followed by the Northern Ireland Industrial Tribunal in the case of Bickerstaff –v- Butcher in which it upheld a claim for harassment by colleagues of Mr Butcher due to his weight.

Relevance for UK employers?

The principles of the directive have been incorporated into UK legislation through the Equality Act, which protects against direct and indirect discrimination because of disability and also discrimination arising from disability. In addition, employers are under a duty to make reasonable adjustments to an individual’s work or working arrangements in order to counter the effects of disability.

The Equality Act sets out various identifying criteria of disability in terms of the nature, effect and duration of a relevant “impairment”. What the Kaltofts decision confirms is that it may not be necessary for an obese employee to point to some other related medical condition (such as diabetes or arthritis) before they can be categorised as a disabled person. For example, if obesity, in itself, causes reduced mobility, that may be sufficient to constitute a disability.

Employers should therefore remain alert to employee health and workplace obstacles (including to those who are obese) considering questions such as:

Is an employee exhibiting signs of struggling at work or have they mentioned doing so? Before considering performance management, consider possible reasons, such as disability.

Has an employee had a period or periods of sick leave? It is good practice to hold return to work interviews, to make further enquiry.

Has an employee requested adjustments to their work or working environment or are you aware of any such needs? The law will penalise employers who fail to be accommodating towards employees with a disability they ought reasonably to know about.

If making decisions about dismissal or redundancy, might the organisation’s standard practice or procedure disadvantage those with disability?

Naeema advises on all aspects of employment law, acting primarily on behalf of large scale employers who are household names. She undertakes her own advocacy in tribunals throughout the UK and has a special interest in executive terminations, large scale re-organisations, contractual disputes and discrimination.

Naeema is a regular speaker at seminars and conferences and chairs workshops on equal pay which are jointly hosted with Opportunity Now. She contributes to a variety of publications and broadcast media. She is also featured in the Legal 500, Legal Experts and Chambers directories, in which she is noted for her "articulate and professional manner" and "high level of competency in various areas, from tribunals, to pension issues, to discrimination" and as someone "you would want in your corner".

Naeema is featured in the Opportunity Now 20th Anniversary Review which celebrates two decades of advancing women in the workplace. She also sits on the North West Advisory Board of Business in the Community. In September 2013 Naeema was appointed as a Fee Paid Employment Tribunal Judge sitting in the Birmingham Region.